Tomorrow’s Brands Might Be Impossible To Trademark

By: MARK WILSON

Anyone who owns an Amazon Echo is familiar with the blue ring. It’s the glowing, abstract face of the Alexa assistant that signifies when it is listening, thinking, and speaking. It’s about as ephemeral as user interface can get.

Perhaps it doesn’t seem odd that Amazon attempted to register the ring as a trademark in 2016. After all, trademarks give companies more protections over their brands. Amazon wants to protect Alexa like Nike wants to protect the swoosh. But in fact, it’s a relatively rare, aggressive move on Amazon’s part: registering a trademark not for a corporate logo, but a piece of a user interface.

Amazon’s move hints at a future where brands and their interfaces are less tangible, and yet even more deeply embedded into the world around us–a place where the brand is the AI, and the AI is the interface. In that future, the brand will no longer be a logomark, but a pulse, an animation, a glow. One legal expert takes us into the confusion of this brave new world.

Companies don’t trademark user interfaces often. Instead, they patent them. These patents can be worth billions of dollars, but there’s a catch: Most patents have a 20-year expiration date. “[Patent] rights don’t last forever,” says Sarah Burstein, associate professor of Law at the University of Oklahoma. “Trademark rights last as long as the mark is used in commerce, so they can potentially last forever.”
So why doesn’t every company protect its user interfaces via permanent trademarks rather than short-lived patents? Because legally, you can’t register a trademark on something that has any kind of real-world utility. And user interfaces are entirely about utility.

Think of a trademark as a visual identifier for a company. Because of trademarks, you can look at the three stripes on any pair of running pants and instantly know they’re made by Adidas. They’re a signifier of brand cachet in a world where, sometimes, that cachet is the only reason one pair of running pants costs more than another. Technically, federal law describes a trademark as “any word, name, symbol, or device, or any combination thereof” that’s used “to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”

Trademarks sound pretty invincible, right? They have at least one major caveat, however. As Burstein explains, trademarks must be “nonfunctional.” A trademarked design can’t do work, like a patented one does, because while trademarks can be protected forever, patents are meant to expire specifically so innovations can be shared by everyone. Trademarks are designed to defend against counterfeiters, not protect innovation.

Which is why Amazon might not get its registered trademark after all. “Based on Amazon’s description of the light ring, it appears that the lights provide the user with information about what the device is doing,” observes Burstein with a logic that makes sense to us. “So the moving light sequence claimed in Amazon’s trademark registration application might be deemed ‘functional’ and, thus, ineligible for protection.”

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